THIRD SUPPLEMENTAL TRUST INDENTURE
This THIRD SUPPLEMENTAL TRUST INDENTURE (this "Third Supplemental
Indenture") is executed this 21st day of February, 1997 (the "Execution
Date"), but effective as of December 28, 1996, by and between WRI HOLDINGS,
INC. (the "Company"), a Texas corporation, and TEXAS COMMERCE BANK NATIONAL
ASSOCIATION (the "Trustee"), a national banking association.
W I T N E S S E T H:
WHEREAS, the Company and the Trustee executed that certain Trust
Indenture dated December 28, 1984 (the "Original Trust Indenture") to secure
the performance of the Company under the terms of that certain 16% Mortgage
Bonds Due 1994 (the "Original Bonds") executed by the Company payable to the
order of ▇▇▇▇▇▇▇▇▇▇ Realty, Inc. ("WRI") dated December 28, 1984 in the face
principal amount of THREE MILLION ONE HUNDRED FIFTY THOUSAND and NO/l00
DOLLARS ($3,150,000.00), payable as therein provided; and
WHEREAS, WRI assigned and conveyed all of its property, both real and
personal, including, without limitation, the Original Bonds, to ▇▇▇▇▇▇▇▇▇▇
Realty Investors ("Weingarten"), a Texas real estate investment trust, as
evidenced by that certain Master Deed and General Conveyance dated April 5,
1988, from WRI to Weingarten; and
WHEREAS, effective as of December 28, 1994, the Company and ▇▇▇▇▇▇▇▇▇▇
renewed and extended the maturity date of the Original Bonds to December
28, 1995 pursuant to the terms of that certain Bonds Renewal and Extension
Agreement dated as of December 28, 1994 ("First Renewal"); and
WHEREAS, effective as of December 28, 1995, the Company and ▇▇▇▇▇▇▇▇▇▇
again renewed and extended the maturity date of the Original Bonds to December
28, 1996 pursuant to the terms of that certain Bonds Second Renewal and
Extension Agreement dated as of December 28, 1995 ("Second Renewal") (the
Original Bonds, as renewed and extended by the First Renewal and Second
Renewal, being herein called the "Bonds"); and
WHEREAS, the Company and ▇▇▇▇▇▇▇▇▇▇ amended and supplemented the terms of
the Original Trust Indenture to reflect the renewal and extension of the Bonds
as provided in the First Renewal and Second Renewal, such amendments being
evidenced by (i) that certain Supplemental Trust Indenture dated as of
December 28, 1994 between the Company, the Trustee and ▇▇▇▇▇▇▇▇▇▇ and (ii)
that certain Second Supplemental Trust Indenture dated as of December 28,
1995, between the Company, the Trustee, and ▇▇▇▇▇▇▇▇▇▇ (the Original Trust
Indenture, as amended and supplemented by the Supplemental
Trust Indenture and Second Supplemental Trust Indenture, being herein called
the "Trust Indenture"); and
WHEREAS, the Bonds mature on December 28, 1996, and the Company and
▇▇▇▇▇▇▇▇▇▇ have agreed to renew and extend the maturity date of the Bonds and
to continue the liens, pledges, and security interests securing the payment of
the Bonds, as set forth in that certain Third Bonds Renewal and Extension
Agreement ("Third Renewal") dated effective as of December 28, 1996, executed
by the Company and ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ being the sole legal owner and
holder of the Bonds; and
WHEREAS, the Company and the Trustee desire to amend and supplement the
Trust Indenture to reflect the renewal and extension of the maturity date of
the Bonds to December 28, 1997.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Company and the Trustee
hereby agree as follows:
1. Except as otherwise provided in this Third Supplemental Indenture,
all capitalized terms used in this Third Supplemental Indenture shall
have the meanings ascribed to those terms in the Trust Indenture.
2. The Company and the Trustee acknowledge that the Company has
re-affirmed its promise to pay to the order of the Payee, at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, the principal
balance due and owing on the Bonds, with interest accrued thereon, as provided
in the Bonds, except that the maturity date of the Bonds has been renewed and
extended to December 28, 1997, at which time the unpaid principal balance of
the Bonds, plus all accrued and unpaid interest thereon, shall be due and
payable.
All liens, pledges, and security interests securing the Bonds granted
under the terms of the Trust Indenture, are hereby renewed, extended and
carried forward to secure payment of the Bonds, as hereby amended, and the
Trust Indenture is hereby amended to reflect that the maturity date of the
Bonds is December 28, 1997.
3. The Company hereby represents and warrants to the Trustee that (a)
the Company is the sole legal and beneficial owner of the Trust Estate; (b)
the Company has the full power and authority to make the agreements contained
in this Third Supplemental Indenture without joinder and consent of any other
party; and (c) the execution, delivery and performance of this Third
Supplemental Indenture will not contravene or constitute an event which itself
or which with the passing of time or giving of notice or both would constitute
a default under any trust deed, deed of trust, loan agreement, indenture or
other agreement to which the Company is a party or by which the Company or any
of its property is bound. The
Company hereby agrees to indemnify and hold harmless the Trustee against any
loss, claim, damage, liability or expense (including, without limitation,
attorneys' fees) incurred as a result of any representation or warranty made
by the Company in this Section 3 proving to be untrue in any material respect.
4. To the extent that the Trust Indenture is inconsistent with the
terms of this Third Supplemental Indenture, the Trust Indenture is hereby
modified and amended to conform with this Third Supplemental Trust Indenture.
Except as modified, renewed and supplemented by this Third Supplemental
Indenture, the Trust Indenture remains unchanged and continues unabated and
in full force and effect as the valid and binding obligation of the Company.
5. The Company covenants and warrants that the Trustee is not in
default under the Trust Indenture, as supplemented by this Third Supplemental
Indenture (collectively referred to as the "Indenture"), that there are no
defenses, counterclaims or offsets to the Bonds or the Indenture, and that all
of the provisions of the Bonds and the Indenture are in full force and effect.
6. The Company agrees to pay all costs incurred in connection
with the execution and consummation of this Third Supplemental Indenture,
including but not limited to, all recording costs and the reasonable fees and
expenses of Trustee's counsel.
7. If any covenant, condition, or provision herein contained is held to
be invalid by final judgment of any court of competent jurisdiction, the
invalidity of such covenant, condition, or provision shall not in any
way affect any other covenant, condition, or provision herein contained.
8. The Company acknowledges and agrees that the outstanding principal
balance of the Bonds as of December 28, 1996 is $3, 150, 000.00.
9. ▇▇▇▇▇▇▇▇▇▇ joins herein to consent to the amendment and supplement
of the terms of the Trust Indenture, as set forth in this Third Supplemental
Indenture and to acknowledge and represent that Weingarten is the sole owner
and holder of the Bonds. Weingarten is an unincorporated trust organized under
the Texas Real Estate Investment Trust Act. Neither the shareholders of
Weingarten, nor its Trust Managers, officers, employees, or other agents shall
be personally, corporately, or individually liable, in any manner whatsoever,
for any debt, act, omission, or obligation of ▇▇▇▇▇▇▇▇▇▇, and all persons
having claims of any kind whatsoever against ▇▇▇▇▇▇▇▇▇▇ shall look solely to
the property of ▇▇▇▇▇▇▇▇▇▇ for the enforcement of their rights (whether
monetary or non-monetary) against ▇▇▇▇▇▇▇▇▇▇.
EXECUTED this day and year first above written1 but effective for all
purposes as of December 28, 1996.
WRI HOLDINGS, INC.
By:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice President
"Company"
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By:__________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇
Assistant Vice President and Trust
Officer
"Trustee"
▇▇▇▇▇▇▇▇▇▇ REALTY INVESTORS
By:_________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Jr. Executive Vice President
"Weingarten"
STATE OF TEXAS
COUNTY OF ▇▇▇▇▇▇
This instrument was acknowledged before me on this ______ day of
February, 1997, by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice President of WRI HOLDINGS, INC., a
Texas corporation, on behalf of said corporation.
Notary Public, State of Texas
STATE OF TEXAS
COUNTY OF ▇▇▇▇▇▇
This instrument was acknowledged before me on this ______ day of
February, 1997, by ▇▇▇▇▇ ▇▇▇▇▇▇▇, Assistant Vice President and p Trust Officer
of TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national banking association,
on behalf of said national banking association.
Notary Public, State of Texas
STATE OF TEXAS
COUNTY OF ▇▇▇▇▇▇
This instrument was acknowledged before me on this _______ day of
February, 1997, by ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Jr., Executive Vice President of ▇▇▇▇▇▇▇▇▇▇
REALTY INVESTORS, a Texas real estate investment trust, on behalf of said real
estate investment trust.
Notary Public, State of Texas
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